65FR37343 Endangered and Threatened Wildlife and Plants; Proposal to List the Chiricahua Leopard Frog as Threatened With a Special Rule, Part 2/2
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Posting-number: Volume 65, Issue 115, Page 37343, Part 1
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At least 47 of 79 localities confirmed as supporting extant
populations of the Chiricahua leopard frog from 1995 to the present
occur entirely, or in part, on National Forest Lands. Thirty-four
extant localities occur entirely, or in part, on the Coronado National
Forest, Arizona. Additional localities occur on the Gila, Apache-
Sitgreaves, Tonto, and Coconino National Forests. As a result, Forest
Service land management plans are particularly important in guiding the
management of Chiricahua leopard frog habitat. However, these plans
have not always adequately protected this species' habitat. Many
activities that affect the Chiricahua leopard frog and its habitat are
beyond Forest Service control. For instance, the Forest Service does
not have the authority to regulate off-site activities such as
atmospheric pollution from copper smelters or other actions that may be
responsible for global amphibian declines, including that of the
Chiricahua leopard frog. The Forest Service has only limited ability to
regulate introductions or stockings of nonnative species that prey on
Chiricahua leopard frogs. Despite extensive planning efforts by the
Forest Service and implementation of management actions to maintain
viable populations of native species on Forest Service lands, loss of
Chiricahua leopard frog populations and metapopulations continues.
The National Environmental Policy Act of 1969 (NEPA) (42 U.S.C.
4321-4370a) requires Federal agencies to consider the environmental
impacts of their actions. NEPA requires Federal agencies to describe
the proposed action, consider alternatives, identify and disclose
potential environmental impacts of each alternative, and involve the
public in the decision-making process. Federal agencies are not
required to select the alternative having the least significant
environmental impacts. A Federal action agency may select an action
that will adversely affect sensitive species provided that these
effects were known and identified in a NEPA document. Most actions
taken by the Forest Service, the Bureau of Land Management, and other
Federal agencies that affect the Chiricahua leopard frog are subject to
the NEPA process.
State and Federal air quality regulations strictly regulate
emissions from copper smelters, a major source of atmospheric cadmium
and arsenic, pollutants that may adversely affect the Chiricahua
leopard frog (Hale and Jarchow 1988). However, a major source of
airborne pollutants likely affecting this species has been copper
smelters in Cananea and Nacozari, Sonora, which are not subject to the
same strict regulations as in the United States (Hale et al. Blanchard
and Stromberg 1987).
Wetland values and water quality of aquatic sites inhabited by the
Chiricahua leopard frog are afforded varying protection under the
Federal Water Pollution Control Act of 1948 (33 U.S.C. 1251-1376), as
amended, and Federal Executive Orders 11988 (Floodplain Management) and
11990 (Protection of Wetlands). The protection afforded by these and
other Federal laws and regulations discussed herein is inadequate to
halt population extirpation and the degradation of the habitat of this
species.
The AGFD included the Chiricahua leopard frog on their draft list
of species of concern (AGFD 1996); however, this designation affords no
legal protection to the species or its habitat. Collection of
Chiricahua leopard frogs is prohibited in Arizona, except by special
permit. The Chiricahua leopard frog is not a State-listed species, nor
is collection prohibited in New Mexico.
The New Mexico Department of Game and Fish adopted a wetland
protection policy in which the Department does not endorse nor take any
action that would promote any private or public project that would
result in a net decrease in either wetland acreage or wetland habitat
values. This policy affords only limited protection to Chiricahua
leopard frog habitat because it is advisory only; destruction or
alteration of wetlands is not regulated by State law.
State of Arizona Executive Order Number 89-16 (Streams and Riparian
Resources), signed on June 10, 1989, directs State agencies to evaluate
their actions and implement changes, as appropriate, to allow for
restoration of riparian resources. Implementation of this regulation
may reduce adverse effects of some State actions on the habitat of the
Chiricahua leopard frog.
E. Other natural or manmade factors affecting its continued
existence. Because of the inherent dynamic nature of southwestern
wetland and riparian habitats, coupled with the increased likelihood of
extirpation characteristic of small populations, the viability of
extant populations of the Chiricahua leopard frog is thought, in many
cases, to be relatively short. Approximately 38 of 79 extant localities
found from 1995 to the present were located in artificial tanks or
impoundments constructed for watering livestock. These environments are
very dynamic due to flooding, drought, and human activities such as
maintenance of stock tanks. In addition, stock tank populations are
often quite small. Small populations are subject to extirpation from
random variations in such factors as the demographics of age structure
or sex ratio, and from disease and other natural events (Wilcox and
Murphy 1985). Inbreeding depression and loss of genetic diversity may
also occur in small populations of less than a few hundred individuals;
such loss may reduce the fitness of individuals and the ability of the
population to adapt to change (Frankel and Soule 1981). Both of these
genetic considerations result in an increased likelihood of extirpation
(Lande and Barrowclough 1987).
The dynamic nature of stock tank habitats and the small size of the
populations that inhabit them suggest that many of these populations
are not likely to persist for long periods. As an example, siltation
and drought dramatically reduced the extent of aquatic habitat at
Rosewood Tank in the San Bernardino Valley, Arizona (Matt Magoffin, San
Bernardino National Wildlife Refuge, pers. comm. 1997). Aquatic habitat
was reduced in June 1994, to a surface area of approximately 60 square
feet (sq. ft) that supported a population of approximately eight adult
Chiricahua leopard frogs and several hundred tadpoles. In this
instance, the landowner was only able to prevent the population from
being extirpated by repeated efforts to intervene on behalf of the
Chiricahua leopard frog in trucking water to the site, rebuilding the
tank, and constructing a small permanent pond to maintain habitat for
the species.
Some larger populations occurring in stream courses or other non-
stock tank habitats also experience dramatic changes in population
size, such as in Sycamore Canyon in the Pajarito Mountains, Arizona,
and on the eastern slope of the Santa Rita Mountains, Arizona (S. Hale,
pers. comm. 1994). These habitats, although much larger than a stock
tank, experience dramatic environmental phenomena such as floods,
drought, and in the case of Sycamore Canyon, varied zinc to cadmium
ratios, all of which may cause populations to crash. This finding
suggests that even these relatively large and natural habitats and the
frog populations they support are very dynamic. As a result of this
dynamic nature, leopard frog populations are susceptible to
extirpation.
As discussed in the ``Background'' section of this proposed rule,
metapopulations are more likely to persist over time than small, more
isolated populations, because individuals and genetic material can be
exchanged among populations within the metapopulation, resulting in
increased recolonization rates and fewer
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potential genetic problems. To define metapopulations of the Chiricahua
leopard frog, some knowledge of the ability of this species to move
among aquatic sites is required. Although the ability of the Chiricahua
leopard frog to move among aquatic sites needs some additional study,
the Chiricahua leopard frog is considered a highly aquatic species
(Stebbins 1985) that may not travel as far from water as other leopard
frog species. Amphibians, in general, have limited dispersal and
colonization abilities due to physiological constraints, limited
movements, and high site fidelity (Blaustein et al. 1994). Dispersal of
Chiricahua leopard frogs probably occurs most often along drainages,
particularly those with permanent water, but also along intermittent
stream courses and overland during summer rains.
Where several populations of Chiricahua leopard frog occur in close
proximity (separated by no more than a few kilometers), functional
metapopulations may exist. Two areas of the Galiuro Mountains of
Arizona support a total of 12 extant localities, including 4 localities
in the northern end of the range and 8 in the southern end. A similar
cluster of seven localities occurs in the Dragoon Mountains, Arizona.
Metapopulations may exist elsewhere, for instance, in Arizona in the
southwest quarter of the San Rafael Valley, and in the Crouch Creek
area, and in New Mexico, east and northeast of Hurley, and in the
Frieborn Canyon-Dry Blue Creek area. However, with the exception of
those in the Dragoon and southern Galiuro mountains, metapopulations of
which we are aware probably consist of five or fewer localities.
Metapopulations, particularly the larger examples, are critical to
long-term survival of the species. Also critical are large populations,
such as on the Tularosa River, New Mexico, and Sycamore Canyon and
associated tanks in the Pajarito Mountains, Arizona, which are expected
to experience relatively low extinction rates and may serve as source
populations for colonization of nearby suitable habitats.
In making the determination to propose this rule, we carefully
assessed the best scientific and commercial information available
regarding the past, present, and future threats faced by the Chiricahua
leopard frog. Based on this evaluation, our preferred action is to list
the Chiricahua leopard frog as threatened. The Act defines an
endangered species as one that is in danger of extinction throughout
all or a significant portion of its range. The Act defines a threatened
species as any species likely to become endangered within the
foreseeable future.
Within its range in the United States, the Chiricahua leopard frog
is believed absent from a relatively high percentage of historical
localities, and has undergone regional extirpation in areas where it
was once well-distributed. The status of populations in Mexico are
unknown, but the species is considered as threatened by the Mexican
Government. The species is not in immediate danger of extinction,
because at least a few relatively robust populations and
metapopulations still exist (e.g., Tularosa River, Dragoon Mountains,
Galiuro Mountains), and 79 extant localities have been documented from
1995 to the present. However, if present threats and declines continue,
the Chiricahua leopard frog is likely to become an endangered species
in the foreseeable future (Painter 1996, Rosen et al. 1996). Therefore,
we believe that the Chiricahua leopard frog meets the definition of a
threatened species under the Act.
Critical Habitat
Critical habitat is defined in Section 3 of the Act as--(I) the
specific areas within the geographic area occupied by a species, at the
time it is listed in accordance with the Act, on which are found those
physical or biological features (I) essential to the conservation of
the species and (II) that may require special management consideration
or protection and; (ii) specific areas outside the geographic area
occupied by a species at the time it is listed, upon determination that
such areas are essential for the conservation of the species.
``Conservation'' means the use of all methods and procedures that are
necessary to bring an endangered species or a threatened species to the
point at which listing under the Act is no longer necessary.
Section 4(b)(2) and 4(b)(6)(C) of the Act, as amended, and
implementing regulations (50 CFR 424.12) require that, to the maximum
extent prudent and determinable, the Secretary designate critical
habitat at the time the species is determined to be endangered or
threatened. The designation of critical habitat is not prudent (50 CFR
424.12(a)(1)) when one or both of the following situations exist--(1)
the species is threatened by taking or other human activity, and
identification of critical habitat can be expected to increase the
degree of threat, or (2) such designation would not be beneficial to
the species.
Critical habitat designation would require publishing in the
Federal Register the locations of all or the most important Chiricahua
leopard frog populations and habitats. As discussed under Factor B in
the ``Summary of Factors Affecting the Species,'' the Chiricahua
leopard frog is potentially threatened by collection. Publishing
locality data would facilitate collection as it would provide
collectors with specific, previously unknown information about the
location of this species. Collection has contributed to the decline of
other rare anurans, including the endangered Wyoming toad (Bufo
hemiophrys baxteri), threatened California red-legged frog (Rana aurora
draytonii) (Stebbins and Cohen 1995, Jennings and Hayes 1995), and a
number of other anuran species worldwide (Vial and Saylor 1993).
Scientists have not documented collection, to date, as a cause of
population decline or loss in the Chiricahua leopard frog. However,
such collection would be difficult to document. Collection of large
adult frogs for food, fish bait, scientific, or other purposes,
particularly after a winter die-off or other event that severely
reduces the adult population, could hasten the extirpation of small
populations. Recognition of the Chiricahua leopard frog as a threatened
species may increase its value to collectors. The Chiricahua leopard
frog is an attractive, often bright green frog that we believe would do
quite well in captivity. The Northern leopard frog, Rana pipiens, a
very similar animal, is common in the pet trade. We are aware of
internet trade in ``leopard frogs,'' which could include Chiricahua
leopard frogs. Chiricahua leopard frogs should be as attractive as the
Northern leopard frog to collectors, or perhaps more so because of
their rarity.
Import and export data provided by our Division of Law Enforcement
document a substantial amount of international trade in Rana spp.
Specifically, for the period of January 1, 1996, to October 31, 1998,
9,997 live individuals of Rana spp. were imported into and 51,043 live
individuals were exported from the United States. Because shipments of
wildlife from the United States are not as closely monitored as
imports, and are sometimes not recorded to the genus level (this is
also true for imports as well), the number of exports documented for
this timeframe is likely an under representation of what actually
occurred.
In 1995, many large adult Ramsey Canyon leopard frogs (which are
very similar in appearance and closely related to the Chiricahua
leopard frog) were illegally collected from a site in the Huachuca
Mountains, Arizona,
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following publicity about the rare status of the frog. The locality,
which occurs within the range of the Chiricahua leopard frog, has been
considered extirpated since 1997. Collection probably contributed to
its demise. Following newspaper publicity regarding our proposal to
list the Arroyo toad (Bufo microscaphus californicus), a former U.S.
Forest Service employee found that a main pool near the road, formerly
with a high density of calling males, was absent of males, some
previously tagged. The tagged males could not be located elsewhere, and
their absence was not thought to be due to natural movement or
predation (Nancy Sandburg, U.S. Forest Service pers. comm. 1999).
Publishing maps for the best populations and habitats of Chiricahua
leopard frog could cause or contribute to similar declines or
extirpations. The evidence shows, therefore, that threat of collection
would increase substantially if we disclosed specific location
information for all or the most important Chiricahua leopard frog
populations and habitats.
Publishing locality data could also facilitate vandalism of
habitats where Chiricahua leopard frogs occur. Platz (1995) noted the
disappearance of large tadpoles at a Ramsey Canyon leopard frog site in
Brown Canyon, Huachuca Mountains, in 1991-1992, and suggested their
disappearance may have, in part, resulted from an act of vandalism.
Many Chiricahua leopard frog habitats are small and could be easily
contaminated with toxicants or taken over by nonnative predators,
resulting in extirpation of frog populations. The majority of extant
populations also occur on public lands (primarily National Forest
lands) with public access routes that lead to the populations or pass
nearby. Public access to these sites is reasonably expected to
facilitate collections or vandalism.
Publishing maps of Chiricahua leopard frog sites could also
facilitate disease transmission. Chytridiomycosis and other amphibian
diseases can be spread by transporting mud, water, or frogs from one
site to another. If a person visits a site where disease is present and
then travels to another site, disease can be spread via muddy or wet
boots, nets, vehicles or other equipment (Speare et al. 1998, David
Green, National Wildlife Health Center, Madison, Wisconsin, pers. comm.
2000). Although other hypotheses have been proposed (Carey et al.
1999), Daszak et al. (1999) find that the pattern of amphibian deaths
and population declines associated with chytridiomycosis is consistent
with an introduced pathogen. The chytrid fungus is not known to have an
airborne spore, but rather disperses among individuals and populations
via zoospores that swim through water or during contact between
individual frogs (Daszak 1998). If chytridiomycosis is a recent
introduction on a global scale, then dispersal by way of global or
regional commerce; translocation of frogs and other organisms; and
travel among areas by anglers, scientists, tourists, and others are
viable scenarios for transmission of this disease (Daszak et al. 1999,
Halliday 1998). Until the spread of chytridiomycosis is better
understood, and the role of this and other diseases in the decline of
the Chiricahua leopard frog is clarified, visitation of Chiricahua
leopard frog sites should not be encouraged. Publishing maps of
Chiricahua leopard frog sites could facilitate visitation by collectors
or those who want to view the frog. Increased visitation increases the
risk of disease transmission.
The prohibition of destruction or adverse modification of critical
habitat is provided under section 7 of the Act and, therefore applies
only to actions funded, authorized, or carried out by Federal agencies.
``Destruction or adverse modification'' is defined under 50 CFR 402.02
as an action that appreciably diminishes the value of critical habitat
for the survival and recovery of the listed species. Similarly, section
7 prohibits jeopardizing the continued existence of a listed species.
``Jeopardize the continued existence'' is defined as an action that
would be expected to reduce appreciably the likelihood of survival and
recovery of a listed species.
Given the similarity in the above definitions, in most cases
Federal actions that would appreciably reduce the value of critical
habitat for the survival and recovery of the Chiricahua leopard frog
would also reduce appreciably the likelihood of survival and recovery
of the species. The Chiricahua leopard frog occurs mostly in relatively
small populations that are highly vulnerable to extirpation. Habitat
alteration of a severity to result in destruction or adverse
modification of critical habitat would likely also jeopardize the
continued existence of the species. Similarly, reasonable and prudent
alternative actions that would remove the likelihood of jeopardy would
also remove the likelihood of destruction or adverse modification of
critical habitat. While a critical habitat designation for habitat
currently occupied by this species would not be likely to change the
section 7 consultation outcome because an action that destroys or
adversely modifies such critical habitat would also be likely to result
in jeopardy to the species, in some situations section 7 consultation
might be triggered only if critical habitat is designated. Examples
could include unoccupied habitat or occupied habitat that may become
unoccupied in the future. However, we investigated whether designating
unoccupied habitat would provide some potential benefit. We are aware
of only a few unoccupied sites that would be essential for the
conservation of the Chiricahua leopard frog; the vast majority of
essential sites are occupied. As a result, we see little benefit from
the designation of unoccupied habitat. Designating critical habitat may
also provide some educational or informational benefits. However, any
added benefit would be outweighed by the publication of these
additional areas in detailed maps that would subject the species to the
threat of collecting, vandalism, and disease transmission.
In balancing the benefits of critical habitat designation against
the increased threats, we believe the records show that few, if any,
benefits would be derived in this particular instance from designation
of critical habitat. We believe that any potential benefits of critical
habitat designation, beyond those afforded by listing, when weighed
against the negative impacts of disclosing site-specific localities,
does not yield an overall benefit. We, therefore, determine that
critical habitat designation is not prudent for the Chiricahua leopard
frog.
Special Rule
As a means to promote conservation efforts on behalf of the
Chiricahua leopard frog, we are proposing a special rule under section
4(d) of the Act. Under the rule, take of Chiricahua leopard frog caused
by livestock use of or maintenance activities at livestock tanks
located on private or tribal lands would be exempt from section 9 of
the Act. The rule targets tanks on private and tribal lands to
encourage landowners and ranchers to continue to maintain these tanks
that are not only important for livestock operations, but also provide
habitat for leopard frogs. Livestock use and maintenance of tanks on
Federal lands will be addressed through the section 7 process.
Available Conservation Measures
Conservation measures provided to species listed as endangered or
threatened under the Act include recognition, recovery actions,
requirements for Federal protection, and prohibitions against certain
practices.
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Recognition through listing encourages and results in conservation
actions by Federal, State, and private agencies, groups, and
individuals. The Act provides for possible land acquisition and
cooperation with the States and requires that recovery actions be
carried out for all listed species. The protection required of Federal
agencies and the prohibitions against taking and harm are discussed, in
part, below.
Section 7(a) of the Act, as amended, requires Federal agencies to
evaluate their actions with respect to any species that is proposed or
listed as endangered or threatened and with respect to its critical
habitat, if any is designated or proposed. Regulations implementing
this interagency cooperation provision of the Act are codified at 50
CFR part 402. Section 7(a)(4) requires Federal agencies to confer with
us on any action that is likely to jeopardize the continued existence
of a proposed species or result in destruction or adverse modification
of proposed critical habitat. If a species is listed or critical
habitat is designated subsequently, Section 7(a)(2) requires Federal
agencies to ensure that activities they authorize, fund, or carry out
are not likely to jeopardize the continued existence of such a species
or to destroy or adversely modify its critical habitat. If a Federal
action may affect a listed species or its critical habitat, the
responsible Federal agency must enter into consultation with us.
The Chiricahua leopard frog occurs on Federal lands managed by the
Coronado, Apache-Sitgreaves, Tonto, Coconino, and Gila National
Forests; the Bureau of Land Management; and our refuges. Examples of
Federal actions that may affect the Chiricahua leopard frog include
dredge-and-fill activities, grazing programs, construction and
maintenance of stock tanks, logging and other vegetation removal
activities, management of recreation, road construction, fish stocking,
issuance of rights-of-ways, prescribed fire and fire suppression, and
discretionary actions authorizing mining. These and other Federal
actions require Section 7 consultation if the action agency determines
that the proposed action may affect listed species.
Development on private or State lands requiring permits from
Federal agencies, such as permits from the U.S. Army Corps of Engineers
under section 404 of the Clean Water Act, would also be subject to the
Section 7 consultation process. Federal actions not affecting the
species, as well as actions that are not federally funded or permitted
would not require Section 7 consultation. However, prohibitions under
Section 9 of the Act (discussed below) would apply.
Important regional efforts are currently under way to establish
viable metapopulations of Chiricahua leopard frogs. We are currently
working with the Arizona Game and Fish Department, New Mexico
Department of Game and Fish, and several Federal and private landowners
in these efforts. An ongoing regional conservation planning effort in
the San Bernardino Valley, Arizona, being undertaken by this agency,
the Forest Service, State, and private individuals is a good example of
such efforts. Owners of the Magoffin Ranch, in particular, have devoted
extensive efforts to conserving leopard frogs and habitat at stock
tanks on that ranch. As part of the San Bernardino Valley conservation
effort, a high school teacher and his students rear tadpoles in
Douglas, Arizona, and established populations of Chiricahua leopard
frogs in small constructed wetlands at Douglas area public schools
(Biology 150 Class, Douglas High School 1998). In another regional
conservation effort, the Tonto National Forest, Arizona, Arizona Game
and Fish Department, and the Phoenix Zoo have developed a Chiricahua
leopard frog ``conservation and management zone'' in which frogs have
been reared and released into the wild to establish new populations
(Sredl and Healy 1999). A similar regional conservation plan, involving
The Nature Conservancy, Randy Jennings, and the New Mexico Game and
Fish Department, is under way on the Mimbres River, New Mexico.
We commend the individuals involved in these efforts. These
regional conservation plans are proving grounds for developing the
techniques to recover the species rangewide. As such, we strongly
support them and encourage others to develop regional conservation
plans; we will provide assistance and use our authorities to help
develop and implement site-specific conservation activities for this
species. If the Chiricahua leopard frog is listed, handling, rearing,
translocation or other forms of direct or incidental take resulting
from conservation activities can continue under section 10 permits from
us. Incidental take associated with conservation plans may also be
permitted pursuant to an incidental take statement in a biological
opinion for activities under Federal jurisdiction. If the species is
listed, we will work with the individuals involved in these
conservation efforts to ensure that permits are issued promptly and
that the process does not interrupt or hinder ongoing recovery actions.
We are also exploring other opportunities to permit conservation
activities. In particular, we encourage the public to comment on the
desirability of promulgating a special rule under section 4(d) of the
Act that would exempt from the section 9 take prohibitions activities
associated with conservation plans. Eligible conservation plans would
need to promote recovery and be approved by us and the appropriate
State game and fish agency. Activities potentially addressed under such
a plan, and which would be exempt from the section 9 take provisions,
could include, but are not limited to, construction of new habitats or
modification of existing habitats, fencing, enhancement or control of
vegetation, translocation of frogs, and monitoring of frog populations.
The Act and its implementing regulations set forth a series of
general prohibitions and exceptions that apply to all threatened
wildlife. These prohibitions, codified at 50 CFR 17.31, in part, make
it illegal for any person subject to the jurisdiction of the United
States to take (including harass, harm, pursue, hunt, shoot, wound,
kill, trap, or collect, or attempt any such conduct), import or export,
transport in interstate or foreign commerce in the course of a
commercial activity, or sell or offer for sale in interstate or foreign
commerce any threatened species unless provided for under a special
rule. To possess, sell, deliver, carry, transport, or ship any such
wildlife that has been taken illegally is also illegal. Certain
exceptions will apply to persons acting in an agency capacity on the
behalf of the Service and to activities associated with cooperative
State conservation agencies.
Permits may be issued to carry out otherwise prohibited activities
involving threatened wildlife species under certain circumstances.
Regulations governing permits are codified at 50 CFR 17.32. Such
permits are available for scientific purposes, to enhance the
propagation or survival of the species, and/or for incidental take in
connection with otherwise lawful activities. For threatened species,
permits also are available for zoological exhibition, educational
purposes, or special purposes consistent with the purposes of the Act.
Our policy (July 1, 1994; 59 FR 34272) is to identify to the
maximum extent practicable at the time a species is listed those
activities that would or would not likely constitute a violation of
section 9 of the Act. The intent of this policy is to increase public
awareness of the effect of the listing on proposed and ongoing
activities within a species'
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range. Based on the best available information, the following are
examples of actions that would not likely result in a violation of
section 9:
(1) Actions that may affect Chiricahua leopard frog that are
authorized, funded, or carried out by a Federal agency when the action
is conducted in accordance with an incidental take statement issued by
us pursuant to section 7 of the Act;
(2) Actions that may result in take of Chiricahua leopard frog when
the action is conducted in accordance with a permit under section 10 of
the Act;
(3) Recreational activities that do not destroy or significantly
degrade occupied habitat, and do not result in take of frogs;
(4) Release, diversion, or withdrawal of water from or near
occupied habitat in a manner that does not displace or result in
desiccation or death of eggs, tadpoles, or adults; does not disrupt
breeding activities of adults; does not favor introduction of nonnative
predators; and does not alter vegetation characteristics at or near
occupied sites to an extent that exposes the frogs to increased
predation; and
(5) Logging activities that do not result in erosion or siltation
of stream beds and other aquatic habitats occupied by Chiricahua
leopard frogs, do not adversely affect water quality, and do not denude
shoreline vegetation or terrestrial vegetation in occupied habitat.
Activities that we believe could potentially result in ``take'' of
the Chiricahua leopard frog, include, but are not limited to the
following:
(1) Unauthorized collection, capture or handling of the species;
(2) Intentional introduction of nonnative predators, such as
nonnative fish, bullfrogs, crayfish, or tiger salamanders;
(3) Any activity not carried out pursuant to the proposed special
rule (described at the end of this document) in ``Sec. 17.43 Special
rules-amphibians'' that results in destruction or significant
alteration of habitat of Chiricahua leopard frog including, but not
limited to, the discharge of fill material, the diversion or alteration
of stream flows and aquatic habitats occupied by the species or
withdrawal of water to the point at which habitat becomes unsuitable
for the species, and the alteration of the physical channels within the
stream segments and aquatic habitats occupied by the species;
(4) Water diversions, groundwater pumping, water releases, or other
water management activities that result in displacement or death of
eggs, tadpoles, or adult frogs; disruption of breeding activities;
introduction of nonnative predators; or significant alteration of
vegetation characteristics at or near occupied sites. However, pursuant
to the proposed special rule for this species, operation and
maintenance of livestock tanks on private or tribal lands that result
in incidental mortality of frogs would not be considered a violation of
section 9;
(5) Discharge or dumping of hazardous materials, silt, or other
pollutants into waters supporting the species;
(6) Possession, sale, delivery, transport, or shipment of illegally
taken Chiricahua leopard frogs; and
(7) Actions that take Chiricahua leopard frogs that are not
authorized by either a permit under section 10 of the Act or an
incidental take statement under section 7 of the Act, or are identified
as prohibited in the special rule ``Sec. 17.43 Special rules-
amphibians'' for this species; the term ``take'' includes harassing,
harming, pursuing, hunting, shooting, wounding, killing, trapping,
capture, or collecting, or attempting any of these actions.
In the description of activities above, a violation of section 9
would occur if those activities occur to an extent that would result in
``take'' of Chiricahua leopard frog. Not all of the activities
mentioned above will result in violation of section 9 of the Act; only
those activities that result in ``take'' of Chiricahua leopard frog
would be considered violations of section 9. Direct your questions
regarding whether specific activities will constitute a violation of
section 9 to the Field Supervisor, Arizona Ecological Services Field
Office (see ADDRESSES section). Address your requests for copies of the
regulations on listed wildlife and inquiries about prohibitions and
permits to the U.S. Fish and Wildlife Service, Branch of Endangered
Species/Permits, P.O. Box 1306, Albuquerque, New Mexico 87103
(telephone (505)248-6920, facsimile (505)248-6922).
Public Comments Solicited
We intend for any final action resulting from this proposal to be
as accurate and as effective as possible. Therefore, we solicit
comments or suggestions from the public, other concerned governmental
agencies, the scientific community, industry, or any other interested
party concerning this proposed rule. We particularly seek comments
concerning:
(1) Biological, commercial trade, or other relevant data concerning
any threat (or lack thereof) to the Chiricahua leopard frog;
(2) The location of any additional populations of Chiricahua
leopard frog and the reasons why any habitat should or should not be
determined to be critical habitat as provided by section 4 of the Act;
(3) Additional information concerning the range, distribution, and
population size of the Chiricahua leopard frog;
(4) Current or planned activities in the subject area and their
possible impacts on the Chiricahua leopard frog; and
(5) Additional information pertaining to the promulgation of a
special rule to exempt from the section 9 take prohibitions livestock
use of and maintenance activities at livestock tanks located on private
or tribal lands. Although beyond the scope of the currently proposed
special rule, we also solicit comment on the desirability of a special
rule that would exempt from the section 9 take prohibitions activities
associated with conservation plans that promote recovery and are
approved by us and the appropriate State game and fish agency.
Our practice is to make comments, including names and home
addresses of respondents, available for public review during regular
business hours. Individual respondents may request that we withhold
their home address from the rulemaking record, which we will honor to
the extent allowable by law. In some circumstances, we would withhold
from the rulemaking record a respondent's identity, as allowable by
law. If you wish for us to withhold your name and/or address, you must
state this request prominently at the beginning of your comment.
However, we will not consider anonymous comments. We will make all
submissions from organizations or businesses, and from individuals
identifying themselves as representatives or officials of organizations
or businesses, available for public inspection in their entirety.
Comments and materials received will be available for public
inspection, by appointment, during normal business hours (see ADDRESSES
section).
In making a final decision on this proposed rule, we will take into
consideration the comments and any additional information we receive.
The final rule may differ as a result of this process.
The Act provides for one or more public hearings on this proposal,
if requested. We must receive requests within 45 days of the date of
publication of the proposal in the Federal Register. Such requests must
be made in writing and be addressed to the Field Supervisor (see
ADDRESSES section).
Executive Order 12866 requires each agency to write regulations and
notices that are easy to understand. We invite
[[Page 37356]]
your comments on how to make this proposed rule easier to understand
including answers to questions such as the following: (1) Are the
requirements in the proposed rule clearly stated? (2) Does the proposed
rule contain technical language or jargon that interferes with the
clarity? (3) Does the format of the proposed rule (grouping and order
of sections, use of headings, paragraphing, etc.) aid or reduce its
clarity? (4) Is the description of the proposed rule in the
``Supplementary Information'' section of the preamble helpful in
understanding the notice? What else could we do to make the proposed
rule easier to understand?
Send a copy of any comments that concern how we could make this
proposed rule easier to understand to the Field Supervisor (see
ADDRESSES section).
Required Determinations
Prior to publication of the final rule, we will analyze the
economic effects of the special rule and will determine whether the
special rule is in compliance with the following. We will announce the
availability of our analysis in a separate Federal Register notice:
(1) Regulatory Planning and Review
(2) Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
(3) Small Business Regulatory Enforcement Fairness Act (5 U.S.C.
804(2))
(4) Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
(5) Taking Personal Property Rights (Executive Order 12630)
(6) Federalism (Executive Order 13132)
Civil Justice Reform
In accordance with Executive Order 12988, the Department of the
Interior's Office of the Solicitor determined that this proposed
special rule does not unduly burden the judicial system and meets the
requirements of sections 3(a) and 3(b)(2) of the Order. The Office of
the Solicitor will review the final special rule. We will make every
effort to ensure that the final special rule contains no drafting
errors, provides clear standards, simplifies procedures, reduces
burden, and is clearly written such that litigation risk is minimized.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This proposed rule and special rule does not contain any
information collection requirements for which Office of Management and
Budget (OMB) approval under the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.) is required. An information collection related to
the rule pertaining to permits for endangered and threatened species
has OMB approval and is assigned clearance number 1018-0094. An agency
may not conduct or sponsor, and a person is not required to respond to
a collection of information unless it displays a currently valid OMB
control number. This proposed rule and special rule does not alter that
information collection requirement. For additional information
concerning permits and associated requirements for threatened species,
see 50 CFR 17.32.
National Environmental Policy Act
We determined that we do not need to prepare Environmental
Assessments and Environmental Impact Statements, as defined under the
authority of the National Environmental Policy Act of 1969, in
connection with regulations adopted pursuant to Section 4(a) of the
Endangered Species Act of 1973, as amended. We published a notice
outlining the basis for this determination in the Federal Register on
October 25, 1983 (48 FR 49244).
References Cited
A complete list of all references cited in this rule is available
upon request from the Arizona Ecological Services Field Office (see
ADDRESSES section).
Author: The primary author of this notice is James Rorabaugh (see
ADDRESSES section).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Proposed Regulation Promulgation
We propose to amend part 17, subchapter B of chapter I, title 50 of
the Code of Federal Regulations, as set forth below:
PART 17--[AMENDED]
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
2. Amend section 17.11(h) by adding the following in alphabetical
order, under AMPHIBIANS, to the List of Endangered and Threatened
Wildlife:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate
---------------------------------------------------- population where Critical
Historic range endangered or Status When listed habitat Special rules
Common name Scientific name threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
Amphibians
* * * * * * *
Frog, Chiricahua leopard....... Rana U.S.A. (AZ, NM), Entire............ T ........... NA Sec. 17.43(b)
chiricahuensis. Mexico.
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 37357]]
3. We propose to amend 50 CFR 17.43 by adding paragraph (b) to read
as follows:
Sec. 17.43 Special rules--amphibians.
* * * * *
(b) What species is covered by this special rule? Chiricahua
leopard frog (Rana chiricahuensis).
(1) What activities are prohibited? Except as noted in paragraph
(b)(2) of this section, all prohibitions of Sec. 17.31 will apply to
the Chiricahua leopard frog.
(2) What activities are allowed on private or tribal land?
Incidental take of the Chiricahua leopard frog will not be considered a
violation of section 9 of the Act, if the incidental take results from
livestock use of or maintenance activities at livestock tanks located
on private or tribal lands. A livestock tank is defined as an existing
or future impoundment in an ephemeral drainage or upland site
constructed primarily as a watering site for livestock.
Dated: May 19, 2000.
Donald J. Barry,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 00-14972 Filed 6-13-00; 8:45 am]
BILLING CODE 4310-55-P